Social justice via legal injustice (staring Novak Djokovic as a regular rightless immigrant)

It is an essential property of law as an anthropological phenomenon to strive for universal equality. Even in the times of slavery or feudalism, legal thinkers recognized absolute equality as the ultimate ideal. Article 7 of the Universal Declaration of Human Rights states: "All are equal before the law and are entitled without any discrimination to equal protection of the law". 

Ideological zealotry often clashes with these principles, and is therefore a handy tool for politicians to bring the public to agree with legalized inequality. The saga of Novak Djokovic's attempt to enter Australia without receiving vaccination is a prime example of a serious breach of legal egality that was gladly embraced by both national and international public due to the fact that the affected person is perceived as clashing with a dominant and passionately pursued ideology.

“If that evidence is insufficient, then he won’t be treated any different to anyone else and will be on the next plane home – there should be no special rules for Novak Djokovic,” said Australian prime minister Morrison referring to the documentation accompanying Djokovic's visa after his arrival in Australia to play in the Australian Open. At the time of first visa cancellation, the position of the government, including the prime minister and the minister of immigration Hawke, was that Djokovic did not fulfill the legal conditions to legally enter Australia.

"What more could this man have done?" asked judge Anthony Kelly, ruling that Djokovic had provided the authorities with all the required documents to legally stay in the country, including a valid medical exemption, and that same rules for all means in this case that Djokovic is free to stay and play.

“Given Mr Djokovic’s high-profile status and position as a role model in the sporting and broader community, his ongoing presence in Australia may foster similar disregard for the precautionary requirements following receipt of a positive COVID-19 test in Australia,” writes only few days later Australian minister of immigration Hawke in the justification of his decision to revoke Djokovic's visa again. 

The government has thereby reverted from procedural grounds for revoking the visa to their real motivation: the reaction of the public. The contribution of pure rhetoric is in referring to the disregard for the anti-COVID-19 measures while forgetting to mention the approaching election. The actual inducement behind the decision is not that a minority would feel encouraged to oppose the measures, but that the vast majority sharing the solidary ideology of voluntarily depriving oneself of certain rights in order to prevent the spread of the virus and save the lives of the vulnerable would feel bad about someone (perceived to be) in conflict with this ideology legally entering the country.

Ruling the decision legal by three Federal Court judges in conjunction with the fact that the minister's justification could be used on very few people other than Djokovic directly implies that not all are equal before the law. There are special rules for role models after all, and for Djokovic as the role model in question. Their rights are not guaranteed and depend on the public opinion.

While I personally feel that Djokovic's failure to get vaccinated and the likely reasons having to do with his spritual new-age wishi-washy philosophy, his stubborn commitment to stupidity as I see it, deserved him the situation that he found himself in - my personal feelings about someone should not be the ground for the law to suspend zthis person's rights. I also think that Djokovic's going through the maltreatment by Australian authorities is a funny anecdote in comparison with the maltreatment of hundreds of anonymous migrants kept in their 'hotels'. That a vast majority of Australian citizens share my feelings at least on the former issue only aggravates the situation because it is a core purpose of law to protect the equal rights of every individual exactly against the pressure of various majorities and their sentiments.

Djokovic's personality is not a celebration of equality. He is a person of numerous privileges, a person who manifests great solidarity through his donations, while at the same time refusing to manifest it by getting vaccinated or by properly respecting other anti-pandemic measures. As all his privileges directly or indirectly stem from his popularity, I also personally feel that they fairly come with a higher sensitivity of the public for his opinions and acts. However, the public has its own mechanisms of penalizing those who fail to live up to their popularity, or to match it with an adequate social responsibility. The law has nothing to do with it: no restriction of one's rights based either on their perception by the public or on their own views of social equality is stipulated by the law, in Australia or in any other vaguely democratic country. 

In a common-law legal system such as that in Australia, the ruling in Djokovic's case is a precedent with broad and deep consequences. The right to freedom of expression: the freedom to formulate one's opinions without fear of retaliation, censorship, or legal sanction, is a cornerstone of democracy and has been recognised as an essential human right in the United Nations' Universal Declaration of Human Rights and International Human Rights Law. Australia's precedent jeopardizes much more than just the freedom of expression. It targets the freedom of merely having opinions and ideas. And yet worse: based on your social status or its perception, it suffices that the government believes that the public attributes to you opinions that are in conflict with what the government sees as public interest, or that you raise certain sentiments in it, for your rights to be suspended. Even if you do not entertain such opinions and have not deliberately done anything to cause such beliefs (as explicitly formulated in the minister's justification submitted to the court).

Djokovic is privileged in many ways. This enables the government to present his legal discrimination as equality. As it is usual that the rich and powerful are also priviledged by the government, and often by the legal authorities too, in the eyes of the public, depriving Djokovic of his legal equality compensates for his social privilege, as well as for the suffering of the numerous hostages of Australian migration policies. Exactly this is the fatal aspect of many otherwise noble revolutions: social inequality and injustice are not solved by legal inequality - they can only be solved by social equality.